How Does the Prosecutor Prove the Offense of Tampering with or Planting Evidence?

To prove that the defendant is guilty of this offense, the prosecutor has to prove the following facts or elements1:

The defendant willfully and intentionally2 changed, planted or placed or made, hid or moved evidence3; AND

The defendant knew she/he was changing or planting, or placing or making or hiding or moving) the evidence; AND

When the defendant changed or planted, or placed or made or hid or moved the evidence, he/she intended that his/her action would result in someone being charged with a crime, or the evidence being wrongfully produced as genuine or true in a court proceeding.

Example

Sylvia wants to collect workers compensation benefits from her employer so she pretends to injure herself on the job and then goes to a friend doctor and gets a false diagnosis. Because she intentionally used the false diagnosis as evidence to support her workers compensation case, she can be charged with the offense.

Example Of Peace Officer Violation

Arthur, a police officer, who has been on a drug trafficking case for months without result, wants to validate his reputation with the chief. He plants a bag of cocaine in one of the suspect’s cars and reports his findings to the station.

He then uses the planted evidence as probable cause to obtain a search warrant to search the suspect’s house where he discovers real evidence of drug trafficking. Because Arthur intentionally planted the evidence as if it were genuine evidence of drug trafficking, he can be charged with the offense.

Assembly Bill 1909

Under a new law approved by the governor of California on September 30th, 2016 California Penal Code 141 was expanded to include prosecuting attorneys who intentially alter, modify or withold evidence knowing that this evidence may have a material outcome on a case.5

Specific Intent

Any person can be charged with the offense as long as they intentionally and willingly tampered or planted the evidence and they did so with the specific intent that a person be convicted with a crime or that the evidence be produced as genuine.

Legal Defenses

If you were falsely accused, you cannot be charged with this offense. In such a situation, the facts will need to be investigated further to determine the real cause behind the accusation. However, without real facts to back up the accusation, the prosecutor will not be able to charge you with the offense.

California Penal Code 141(b) – A peace officer who knowingly, willfully, intentionally, and wrongfully alters, modifies, plants, places, manufactures, conceals, or moves any physical matter, digital image, or video recording, with specific intent that the action will result in a person being charged with a crime or with the specific intent that the physical matter, digital image, or video recording will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony punishable by two, three, or five years in the state prison. Available at http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=141.&lawCode=PEN [↩]

California Penal Code 141(c) – A prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years. Available at http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=141.&lawCode=PEN [↩]